The United States Citizenship and Immigration Services (“USCIS”) has recently proposed new regulations designed to streamline the submission of new H-1B petitions and give greater preference to those workers who hold U.S. Master’s degrees. This new system is not yet in place, as the agency must follow regulatory procedures for making these fundamental changes, including a public comment period before finalizing the new regulations.
In each fiscal year (beginning October 1), there are 65,000 new H-1B visas available as part of the “regular cap” and an additional 20,000 in the “U.S. Master’s degree” cap. Under the existing system, employers file H-1B petitions on April 1 requesting a start date of October 1. There is usually a 5-day submission period, at the end of which the USCIS conducts a lottery to select petitions for adjudication. The first lottery is to select the 20,000 for the U.S. Master’s degree cap. Those not selected in this round are submitted in the regular cap lottery.
The proposed system is as follows. The USCIS will have a registration period that begins at least 14 calendar days before the first day of filing in each fiscal year. The public will be given at least 30 days advance notice of the start date, and registration will last for at least 14 days. The final registration day will be announced separately. The employer will submit one registration for one proposed H-1B worker in a designated H-1B position. Some of the information needed for registration may include:
If during the registration period the USCIS determines that it has sufficient registrations to fill the 85,000 slots available, it will conduct a random lottery. First, all the registrations, including the U.S. Master’s degree holders, will be considered under the regular cap. Once the 65,000 slots are filled, the U.S. Master’s degree holders who were not selected in this process will then be placed in the 20,000 remaining slots. If there are more than 20,000 registrations, there will be a lottery for those slots.
Those who are selected from the lottery will be notified with information on the filing location and the designated filing period during which the H-1B petition must be filed. The USCIS is proposing that petitioners be given at least 60 days to properly file their H-1B petitions. If the petitioner is notified prior to April 1, the filing period will be triggered on April 1, which is the first day a new H-1B petition can be filed.
To prevent fraud and “flooding” of the system, employers are required to register one person for one position once. In other words, employers may not register the same worker multiple times, list more than one person per H-1B position or substitute workers once a registration has been selected for H-1B filing. If the USCIS discovers that a petitioner registered the same worker multiple times, all registrations by that petitioner for that worker will be considered invalid for the fiscal year.
Furthermore, if an employer registers numerous beneficiaries but does not file H-1B petitions for those selected at a rate that the USCIS deems indicative of a pattern and practice of abuse of the registration system, the USCIS warns that it will conduct investigations and hold petitioners accountable.
Since this is a new system, the USCIS acknowledges that it does not have sufficient information to determine whether the number of registration it accepts will be sufficient to fill the cap. Because of this, the USCIS will keep a reserve of registrations should it determine that it did not receive enough actual H-1B petitions based on accepted registrations.
The most notable feature of this proposed system is that employers could significantly reduce costs. Under the current system, the employer pays to complete petitions that may be returned months later. If the employer is able to wait to see which employees are selected, they have the comfort of knowing that after expending its time, efforts and funds, the filing should be accepted. Significantly, the USCIS currently is not proposing a registration fee, which also makes the system attractive from a fiscal perspective.
Secondly, if you are a worker with a U.S. Master's degree, this new system does help you. Since all U.S. Master's degree holders will be considered for the regular cap first, more U.S. Master's degree holders will likely be selected in the regular cap than under the current system. Although the desire to give this additional boost is well-meaning, an employer may not always find that advance degree holder more attractive than one who holds a Bachelor's degree and has many quality years of experience.
There are some concerns. First, once the registration is submitted, edits are not permitted. Thus, for example, if a beneficiary’s name is not spelled correctly and is not discovered until a later date, will the USCIS reject the petition filing? Or will there be a laborious process whereby the petitioner must notify the USCIS of this error before filing? Anyone who’s dealt with the USCIS will understand that even the simplest request can turn into an ordeal.
Another concern is the time frames for both registration and for filing. If the registration period is 14 calendar days before April 1, that could potentially delay filing by several months. For practitioners, this could become a problem for those who are changing status. For employers, this could also mean that they will have to extend the worker’s start date out far beyond October 1.
Currently, because of the delays in adjudications, it is common for employers not to receive an approval notice until November and December. The USCIS’s own processing time estimates are listed at approximately 8 months. If under this new system, the employer is not able to file an H-1B petition until June or even July, there is the possibility that it would receive a final decision until well into the fiscal year. Of course, the USCIS’s hope is that this new system will create staggering filing dates. By avoiding the flood of more than 100,000 H-1B petitions submitted at once, which I’m sure results in an administrative nightmare, the USCIS is hoping to create a situation where adjudication could move more smoothly. Let’s hope that this is the case.
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